Court rejects Trump’s urgent bid to keep lawyer’s records from special counsel

A federal appeals court has rejected Donald Trump’s bid to prevent special counsel Jack Smith from obtaining key documents from a lawyer for the former president related to the handling of sensitive national security records discovered at Trump’s Florida home last year.

The ruling effectively permits the Justice Department to circumvent Trump’s attorney-client privilege after a lower-court judge found that the documents likely contain evidence of a crime. That finding by U.S. District Court Judge Beryl Howell on Friday triggers the “crime-fraud” exception to the usual attorney-client secrecy, the judge ruled.

Trump’s bid to appeal Howell’s ruling unfolded with extraordinary speed on Tuesday and overnight into Wednesday.

After setting middle-of-the-night deadlines for filings in the dispute, a three-judge panel of the D.C. Circuit Court of Appeals on Wednesday afternoon declined Trump’s request for a stay of Howell’s ruling, ordering attorney Evan Corcoran to provide records to a Washington-based grand jury assigned to the special counsel’s probe.

The appeals court’s full order was not released, so it was not immediately clear whether Corcoran would be required to testify in addition to providing documents. But a summary of the D.C. Circuit’s order indicated that prosecutors had prevailed and that stay requests from the Trump camp were denied.

It’s also unclear whether the panel provided any time for Trump to challenge the decision before the full bench of the appeals court or to seek relief from the Supreme Court.

Howell ruled on Friday that Trump’s attorney-client privilege had to yield to the grand jury’s need for Corcoran’s testimony and records, given evidence that the attorney had been used to advance a crime. Smith’s probe is exploring potential obstruction of justice of the classified-documents investigation, as well as illegal retention of classified information and theft of government records, according to court filings.

The appeals court’s order on Wednesday — from Judges Cornelia Pillard, J. Michelle Childs and Florence Pan — didn’t identify Corcoran or the case at issue but made clear that the government was on the winning side of the case in Howell’s court and in the appeals court’s new ruling.

Pillard is an appointee of President Barack Obama as is Howell, the District Court judge who ruled in the dispute. Childs and Pan are appointees of President Joe Biden.

Spokespeople for Trump, his campaign and Smith did not immediately respond to requests for comment on Wednesday on the appeals court’s decision.

“Prosecutors only attack lawyers when they have no case whatsoever,”Trump’s 2024 presidential campaign said in a statement on Tuesday night that also assailed what it called “illegal” leaks about the closed-door court fight. “These leaks are happening because there is no factual or legal basis or substance to any case against President Trump.”

In an order on Tuesday night, the three-judge appeals panel granted a short-term “administrative” stay and also asked Trump’s attorneys to specify the precise set of documents at issue by midnight and for Smith’s team to respond by 6 a.m. Wednesday to the Trump team’s demand for a longer stay of Howell’s ruling.

Howell’s secret order on Friday required Corcoran to testify about matters he and Trump had claimed were subject to attorney-client privilege. Her order relied on the “crime-fraud exception,” which permits investigators to pursue evidence that would ordinarily be privileged but contains evidence of likely criminal conduct.

As chief judge, Howell supervised all disputes arising from grand jury proceedings happening in Washington. That responsibility passed on Friday to U.S. District Court Judge James Boasberg, who succeeded Howell as chief, but only after Howell issued the potentially momentous privilege ruling in the Trump-related legal fight.

Proceedings related to the classified-documents grand jury, including efforts by prosecutors to compel Corcoran’s testimony, are occurring under seal — typical for nearly all grand jury proceedings.

However, the appeals court’s docket provides bare-bones details about the case, identifying when the lower-court battle began — Feb. 7 — and confirming that it stems from a grand-jury-related ruling Howell issued on Friday.

The grand jury probe of Trump, helmed by Smith, is an outgrowth of a monthslong battle between the National Archives and Trump to obtain hundreds of government records stashed at his Mar-a-Lago estate in Florida after leaving office. Trump’s aides returned 15 boxes of records in January 2022, including some that bore classification markings. As a result, the Archives brought in the Justice Department to pursue whether Trump had retained additional classified material.

In May 2022, the Justice Department subpoenaed Trump’s office, demanding the production of any other classified materials he might possess at Mar-a-Lago. Justice Department officials traveled in early June to Mar-a-Lago, where they briefly interacted with Trump and picked up a folder of records deemed classified. Trump’s team then certified that they had thoroughly searched the premises and turned over remaining classified documents.

But the department developed evidence suggesting that this wasn’t the case, leading to an Aug. 8, 2022, FBI search of the property, where dozens of additional documents with classification markings were discovered.

Corcoran, who was Trump’s primary point of contact with the Archives and the Justice Department, has faced scrutiny for his involvement in efforts to certify that Trump had returned all potentially classified materials.

The legal maneuvering in Washington comes as Trump’s lawyers are also awaiting a potential indictment of their client in an unrelated case in New York, an investigation by Manhattan District Attorney Alvin Bragg into details of a hush money payment made in 2016 to the porn actress Stormy Daniels